Friday, October 21, 2005

I just read John Battelle's post on the AAP's lawsuit. The comments are particularly interesting, with a couple of very strident ones criticising Google. I have a theory about how Google plans to justify their actions:

Libraries are allowed, under copyright law, to make a single copy of any work in their possession. This is called the Library Exemption. There is a nice outline of the terms here. The libraries themselves can't get in trouble for contracting with Google to do this for them, because they are receiving no commercial advantage from it. Google clearly is receiving a competitive advantage from it, BUT:

They may be able to make a good case for Fair Use, depending on the nature of what they keep from the book. There are four aspects to be weighed in any Fair Use defense (see Wikipedia):

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

Clearly Google hopes for commercial advantage from the use of the scanned books, so they might fail the first test. The second doesn't really apply: these are clearly books subject fully to copyright law. It's the third and fourth aspects that I think are the center of Google's defense. A copy is a copy, but a searchable index created from a scanned copy is arguably a transformative use of the book. A human being can neither read the index, nor reconstruct the original from it, so Google may be able to successfully defend themselves on aspect #3. Their main weakness is the existence of page images from the original scan. These may or may not be stored and accessible in such a way that a whole copy of the original could be reconstructed and read. Aspect #4 is another winner for Google. The clear effect of this system will be to sell more copies of the publishers' books. The only (theoretical) commercial harm caused to the publishers is that they are effectively prevented from rolling a Google Print of their own, which might bring them in more money than simply selling their books. So Google wins on at least two of the four counts, and the act of copying itself is protected under the Library Exemption.

I suspect the AAP would have an uphill battle in winning this one. I wouldn't be surprised if they wanted Google to license their books for their index at some fairly exorbitant rate, and Google refused to pay because they're doing the publishers a favor. That would make the lawsuit a negotiating tactic.